The law.com Definition of antitrust laws begins by detailing “acts passed by Congress to prohibit or restrict business practices that are viewed as monopoly or restrict trade between states”. This broad definition shows how antitrust law can invade many other areas of law related to business and commerce.
The purpose of this post is to review antitrust decisions by the United States’ appellate courts. With antitrust law moving into so many other areas of law, selecting cases was not an easy task.
A dataset was developed using Westlaw’s opinions, which were coded as antitrust from January 1, 2021 through March 25, 2021. The set originally comprised 106 cases, but 22 cases were removed because they did not comply with antitrust regulations or because they did not provide a clear victorious party.
An example of a case that has been removed from the original set of 106 cases is United States v. Wehrle (CA7). This is much more of a criminal justice case than it begins: “After the police discovered an internet protocol address that was used to download child pornography, they issued an arrest warrant to ransack Lance Wehrle’s house. They confiscated hard drives and digital devices containing over a million photos and videos of child pornography. The search also revealed lascivious photos taken at his home showing the seven-year-old nephew of Wehrle’s friend. “
Vice versa, BanxCorp versus Bankrate provided an example of a properly coded cartel case. This case contains a common antitrust language: “BanxCorp’s inability to define the relevant market proved fatal to both the attempted monopoly and the allegations of the Clayton Act. Without a proper market definition, BanxCorp was unable to demonstrate that Bankrate had a “dangerous chance of monopoly power” in the relevant market and its attempted monopoly claim fails. “
The context of antitrust disputes is determined by the statistical tables from uscourts.gov. Here we find the relative number of the two civil law complaints per circuit for 2020 and the complaints coded as antitrust law under the responsibility for federal issues. The cartel cases are only those that are coded in the federal files as purely antitrust law and therefore represent a smaller set than provided by Westlaw.
Of the circuits, we see a similar number of antitrust complaints (right) in the ninth and second circuits, and then a large drop to the fifth and fourth circuits that appear next in the graph. Obviously, the relative number of cartel cases in the circuits does not perfectly match the relative total number of appeals per circuit. The next graphic shows the number of cartel cases per circuit in the 2021 data set.
While the ninth circuit still has the most cases, the third, fourth and eleventh circuit are not far behind in this data set.
The more interesting results come from the analysis of the parties’ relative successes in the cases. In these cases, the plaintiffs in the courts below or those charged with antitrust violations have lost most of the decisions (the number of decisions that correlate with the percentages is in brackets).
What is the cause of the different results? While the verdict is pending, there are several options worth investigating. One possibility is that the composition of the panel may be different in cases where plaintiffs are preferred than in cases where defendants are preferred. The composition of the body, in particular the parties to the appointment of the president of the judges, correlates with the ideology of the judiciary. ((Epstein, Lee, William M. Landes, and Richard A. Posner. The Behavior of Federal Judges: A Theoretical and Empirical Examination of Rational Decisions. Harvard University Press, 2013.)
Panels in 10 of the 13 counties had more Republican than Democratic judges. This correlates quite closely with the plaintiff decisions compared to plaintiff decisions in the pie chart. There were only two circuits with more decisions for plaintiffs than decisions for defendants.
The First Circle had both more democratic judges on its bodies and more decisions for plaintiffs than for defendants. The other circle with more decisions for plaintiffs than defendants was the DC circle, which had a 2: 1 ratio of Republican to Democratic judges on the boards. The United States Supreme Court database Coded pro-competitive (the plaintiff side in cartel cases) as liberal, and as judges appointed by Democrats tend to be correlates with liberal decisionsWe could expect more judgments per plaintiff from such judges.
Even with the bevy of federal appeals court judges (not to mention senior judges and district court judges sitting by designation), several judges sat on several 84 panels. Judges seated on three or more panels in the set are shown in the graphic below.
Two Fourth Circle Judges, Judges Quattlebaum and Gregory, sat on four boards of the 30 or 14 percent of the Fourth Circle total. Judge Oath of the Tenth Circle also sat on four tablets, or nearly 27 percent of the tablets in the Tenth Circle.
This extensive data set can be developed further with additional cases. Future analyzes could examine the decisions of certain judges in more detail. In addition, lawyers can be added to the sentence to check whether certain lawyers are particularly successful in such cases.
Read more in the Juris Lab …
Adam Feldman heads the process consulting firm Optimized Legal Solutions LLC. For more information, write to Adam at [email protected]
Find him on Twitter: @AdamSFeldman.